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||Neutral Citation Number:  EWHC 217 (Admin)
||Case No: CO/44171/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MRS JUSTICE CARR DBE
|| HUSSAIN JAMAL RASOOL
||- and -
||GENERAL PHARMACEUTICAL COUNCIL
Mr Stephen Fidler (of Stephen Fidler & Co) for the Appellant
Mr Kenneth Hamer (instructed by GPhC In-House Legal Department) for the Respondent
Hearing date: 3rd February 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Carr :
- The appellant ("Mr Rasool") was admitted to the Register of Pharmacists ("the Register") on 28th July 2008. The respondent, the General Pharmaceutical Council ("the GPhC"), is the statutory regulatory body for pharmacy professionals in Great Britain. It has a duty of enforcement under the Medicines Act 1968 and operates its regulatory functions in accordance with the provisions of the Medicines Act 1968 and the Pharmacy Order 2010 ("the Order").
- Mr Rasool challenges the decision of a Fitness to Practice Committee ("the Committee") dated 28th August 2014 to remove his name from the Register pursuant to Article 54(2)(c) of the Order. That decision followed a five day hearing in June and August 2014 before the Committee. The appeal is brought pursuant to Article 58(1)(a) of the Order.
- The disciplinary proceedings against Mr Rasool arose out of an undercover investigation by the British Broadcasting Corporation ("the BBC") ("the BBC investigation") into the allegedly unlawful supply of prescription only medicines by a number of pharmacies in central London. One such pharmacy was the Al Farabi Pharmacy at 39 Edgware Road, London W2 ("the Pharmacy") where Mr Rasool was the superintendent pharmacist. The allegations were broadcast on television on 17th December 2012.
- Three issues were raised by Mr Rasool in his grounds of appeal :
a) (apparent) bias on the part of Mr Patrick Milmo QC, the chairman of the Committee ("the Chairman"), who ought to have recused himself, having heard matters relating to Mr Rasool in the course of an interim order hearing against another pharmacist and employee at the Pharmacy, a Ms Rafif Sarheed ("Ms Sarheed") ("the Sarheed proceedings");
b) abuse of process by reason of the BBC's failure to disclose certain material to the GPhC;
c) the sanction of erasure was disproportionate. A lesser sanction should have been imposed.
In the event, the second ground (alleging abuse of process) has not been pursued. Thus, only the question of bias and sanction arise for my determination.
The BBC investigation
- The BBC hired undercover reporters equipped with hidden cameras and recording devices. The Pharmacy was visited, so far as material, on four occasions between August and November 2012 : 23rd August, 10th September, 5th October and 8th November 2012. Mr Rasool was the responsible pharmacist on duty on each occasion. On each occasion a prescription only medicine was supplied in exchange for money without the "patient" providing a prescription from an approved practitioner.
The disciplinary proceedings : case management meetings
- A case management meeting took place on 9th June 2014 at the request of Mr Rasool's representatives, who wished to raise matters relating to disclosure. No substantive ruling was made. Rather the Chairman, sitting alone, directed that preliminary legal arguments would be taken first before any full hearing.
- A case management meeting duly took place immediately before the commencement of the full hearing on 18th June 2014. The chairman, again sitting alone, disclosed that he had chaired a Fitness to Practise Committee in proceedings against Ms Sarheed. Those proceedings too had arisen out of the BBC investigation. The allegation against Ms Sarheed related to an undercover visit on 27th September 2012 (and so not a visit the subject of the proceedings against Mr Rasool). Ms Sarheed was made the subject of an interim suspension order. This was the first time that the Chairman's involvement in the proceedings against Ms Sarheed was drawn to the attention of either the GPhC's advocate or Mr Rasool and his advisers.
- The Chairman indicated that during the course of the hearing involving Ms Sarheed, Ms Sarheed had stated that she was acting on the instructions of the superintendent pharmacist. That pharmacist was not named, but he presumed that it was Mr Rasool. That was no more than an assertion by Ms Sarheed, and no findings on the point were made. Ms Sarheed's material was not in evidence against Mr Rasool.
- Mr Rasool's representative sought a full transcript of the interim order hearing on 20th December 2013. The Chairman directed that the decision of 20th December 2013 should be made available to Mr Rasool, but not a full transcript of the (private) hearing. But in any event the GPhC's representative undertook to review the full transcript to seek if there was anything that Mr Rasool's representative should know about.
- An extract from the transcript of an interim order hearing on 20th December 2013 was then provided to Mr Rasool's legal representative and the Chairman. It could be seen that in the Sarheed proceedings a witness statement had been read out in which Ms Sarheed alleged that Mr Rasool had agreed to write a statement on her behalf relating to the incident on 27th September 2012 but that he believed that in doing so he would make things worse for himself. (The GPhC had in fact disclosed (as part of unused material) a statement from Mr Rasool in relation to Ms Sarheed's case. That statement did not form any part of the case against Mr Rasool. )
- The Chairman stated that he had no recollection of anything said to him on behalf of Ms Sarheed on 20th December 2013 in relation to Mr Rasool. In fact, he had expressly stated in respect of those submissions made by reference to Mr Rasool that he wished to stop them on the basis that he did not think that they would be of any assistance "in any way at all".
- Mr Rasool applied for the Chairman to recuse himself because he had been shown the transcript page from the interim order hearing in which reference was made to Ms Sarheed's statement as follows :
"He was 50/50 to admitting everything and be done with it. However, he believed by admitting to it that it would make things worse for himself."
The essential submission was that, in a fact finding exercise such as this including assessment of Mr Rasool's credibility, it would be very difficult objectively for the Chairman to put that out of his mind.
- The Chairman dismissed the application as follows :
"I have considered the point you have made. It is quite apparent to me that at the time I took no notice of it, and I will not take notice of it, and I do not think that any objective observer, having regard to my position and my training, would ever think that any bias would arise by reason of being read this document at a review hearing. Accordingly, I am not going to recuse myself and will continue."
- The hearing proceeded accordingly before the full Committee.
The disciplinary proceedings : full hearing
- The following allegations were admitted or found to be proved by the Committee :
"1. You first registered as a Pharmacist on 28 July 2008.
2. While you were the Superintendent and/or Director of Al Farabi Pharmacy, 39 Edgware Road, London W2 2JE ..."the pharmacy"):
i) On or about 23 August 2012 you supplied 21 x 500 mg Amoxicillin capsules, a prescription only medicine, otherwise than in accordance with a prescription given by an appropriate practitioner;
ii) On or about 10 September 2012 you were the responsible pharmacist at the pharmacy;
iii) On or about 10 September 2012 you supplied 21 x 625 mg Augmentin tablets, a prescription only medicine, otherwise than in accordance with a prescription given by an appropriate practitioner;
iv) On or about 10 September 2012 you supplied 28 x 2 mg Diazepam tablets, a prescription only and Schedule 4 controlled medicine, otherwise than in accordance with a prescription given by an appropriate practitioner;
v) On or about 5 October 2012 you were the responsible pharmacist at the pharmacy;
vi) On or about 5 October 2012 you supplied 28 x 10 mg Diazepam tablets, a prescription only and Schedule 4 controlled medicine, otherwise than in accordance with a prescription given by an approved practitioner;
vii) On or about 8 November 2012 you were the responsible pharmacist at the pharmacy;
viii) On or about 8 November 2012 you supplied a 300 ml bottle of Oramorph solution 10 mg/5 ml, a prescription only and Schedule 5 controlled medicine, otherwise than in accordance with a prescription given by an appropriate practitioner.
3. The supplies referred to at 2 above were unlawful.
4. When you made the supplies referred to at 2 above you knew that they were unlawful."
- At the hearing Mr Rasool admitted that he supplied the prescription medicines of Amoxicillin, Augmentin and Diazepam as alleged, and that the recipient did not have a prescription from an approved practitioner. The Committee found that Mr Rasool had also supplied the prescription medicine Oramorph as alleged. His central defence was that the supplies were nevertheless not unlawful, as they were all emergency supplies or sales permitted under the Human Medicines Regulations 2012 ("the Regulations").
- Regulations 224 and 225 of the Regulations set out the conditions for emergency supply of prescription medicines (conditions A to E). They include the following requirements : the pharmacist must be satisfied that there is an immediate need and the obtaining of a prescription without under undue delay is not practicable; the treatment has previously been prescribed by an approved practitioner; the dose is appropriate.
- The Committee had before it the covert filming from the BBC, and a translated transcript of the recorded dialogue between Mr Rasool and the BBC investigator. Oral evidence was given by Mr Guy Lynn, the journalist who organised the BBC investigation, Mr Richard Dancy, a detective sergeant who carried out police investigations (including interviews of Mr Rasool on 23rd April and 7th June 2013), and Ms Sharon Monks, a GPhC inspector. Mr Rasool also gave evidence.
- Having heard and considered all the evidence, for full and detailed reasons, the Committee concluded that Mr Rasool had failed to fulfil the conditions set out in the Regulations in respect of each prescription. In the words of the Committee, there was an "utter" failure to meet the conditions. Accordingly, the prescriptions were unlawful. The Committee also found that Mr Rasool knew that each of the prescriptions was unlawful. It also rejected Mr Rasool's evidence that there was never any payment for the prescription of Oramorph, that he was unaware that the prescription was taken and that any such removal had been facilitated by the unauthorised action of an assistant at the Pharmacy. The Committee found Mr Rasool to be the "prime mover" in the supply of Oramorph.
The disciplinary proceedings : decision on impairment and sanction
- After further deliberation, the Committee declared its decision on impairment and sanction. It found Mr Rasool's fitness to practise to be impaired by reason of misconduct :
"It is virtually indisputable that the conduct of supplying prescription only medicines to persons without prescriptions, in circumstances which do not qualify as emergencies, is serious misconduct. It is something of a cliché to call a pharmacist the gatekeeper of the dispensary, but that is what it is. His basic and fundamental duty is to ensure that toxic and dangerous medicines are only supplied to patients in accordance with a prescription issued by a doctor.
"Misconduct" is not defined in the Pharmacy Order 2010, nor is the term "impairment", but there have been a number of judicial decisions which have illustrated and exemplified the occasions when impairment might arise. Those decisions, it might be said, have now been codified in Rule 5 of the Fitness to Practise Rules 2010. Rule 5 is entitled "Fitness to Practise Criteria", and we are required to have regard to that when assessing whether the requirements of fitness to practise are met in any particular case. The criteria are set out in 5(2), and they are: whether the conduct or behaviour of the Registrant:
a) presents an actual potential risk to patients or to the public;
b) has brought, or might bring, the profession of pharmacy into disrepute;
c) has breached one of the fundamental principles of the professional of pharmacy; or
d) shows that the integrity of the registrant can no longer be relied upon."
Miss Zouq presenting the case on behalf of the Council contends that all four criteria are engaged in this case. We unhesitatingly agree in relation to (a), (b) and (c), but we have hesitated about (d) as there is no allegation of dishonesty. However, on our findings there has been a blatant and deliberate flouting of the law relating to the supply of prescription only medicines, and that affects the pharmacist's trustworthiness, which is an aspect of integrity, and we accept that the criteria in (d) is also engaged."
As for sanction, the Committee stated:
"It is well known, but still desirable to repeat and emphasise that, in the context of fitness to practise proceedings for (sic) a professional regulatory body, the purpose of sanctions is threefold; namely: the protection of the public; the maintenance of public confidence in the profession; and the maintenance of proper standards of behaviour within the profession.
There is one common feature of those three purposes: they are all concerned with public interest considerations. There is obvious public interest in safeguarding the public from the actions of a malpractising pharmacist. There is a public interest in the maintaining of a high level of public confidence in the profession. The public must trust and respect pharmacists, who are a branch of the healthcare profession, whose overall function is to look after persons' health and welfare. There is a public interest in maintaining proper standards of behaviour by members of the pharmacy profession."
- The Committee went on to consider aggravating features (abuse of position and trust; misconduct by a person in charge of pharmacy premises; misconduct repeated over a period of time; potential harm to patients; lack of insight; disregard of advice from a professional standards inspector; blatant disregard of the GPhC's written Standards of Conduct, Ethics and Performance. It also considered mitigating factors (co-operation with the police and evident distress), Mr Rasool's personal circumstances and the testimonials produced on his behalf.
- In relation to Mr Rasool's conduct and the question of insight, the Committee stated :
"What struck us as the most serious, indeed shocking, aspect of Mr Rasool's behaviour was the manner in which he was prepared, casually, peremptorily and without any proper enquiry, to hand over prescription only medicines to a stranger upon request, in return of course for cash. Mr Rasool appeared oblivious to the enormity of what he was doing, or indeed that he was doing anything wrong. This attitude was apparent even in the course of these proceedings, when Mr Rasool resolutely sought to justify his conduct, exemplified by some of the answers he gave in cross-examination, to which I have already drawn attention in our determination of the facts. I will mention again some of those responses, although I may not be using the exact words used by Mr Rasool.
They were to this effect: 'All that a patient has to say to establish a need for a medicine is that he was ill.' 'If a patient asks for a medicine by name that means he has taken it before.' 'An empty packet of Diazepam was sufficient to establish that the person had been taking this drug and that he needed more.' 'It is the patient who chooses the strength of the medicine he requires. I cannot tell him what the strength is he needs.' This seems to us to reveal a fundamental misunderstanding of the function and role of a pharmacist. What also must feature large in our assessment of Mr Rasool's conduct is that it was not an isolated incident. There was hard, incontrovertible evidence that the unlawful supply of prescription only medicines had been continuing over a period little short of four months, and there is good reason to think that without the BBC exposure it would have continued."
- In the final analysis the Committee concluded as follows :
"There are four possible sanctions we can impose on Mr Rasool. They are the issue of a warning, the imposition of conditions upon his continued practice, suspension from practise for a maximum period of 12 months, and a direction that his name be removed from the Register. Mr Fidler accepts that a warning would be too lenient a sanction. We say it would be absurdly lenient and, further, that imposition of conditions would be entirely inappropriate. The remaining sanctions are those of a suspension or removal, and Mr Fidler strongly urges us to impose a suspension. We have referred to the Indicative Sanctions Guidance, and that advises that a suspension may be appropriate where there is evidence of potential for remedying the deficiencies of the practitioner through retraining. Further, where the professional performance is such as to call into question the continued ability of the Registrant to practise safely, suspension may be appropriate where rehabilitation is considered possible. Suspension may be appropriate where the conduct falls short of being fundamentally incompatible with continued registration.
We have to say that we do not think that suspension is the appropriate sanction in this case, in that it would not serve sufficiently the purpose of sanction, which we have described at the outset of this determination. … We consider that Mr Rasool's behaviour is fundamentally incompatible with registration; that public confidence in the profession demands no less a sanction, and that a stronger and more emphatic message than would arise from suspension needs to be sent to the profession and the public that the conduct of Mr Rasool is unacceptable and unbefitting of a person registered with the Council. Accordingly our conclusion is that the sanction must be removal from the Register."
Issue 1 : failure to recuse
- An appeal will be allowed where the decision of the court or tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings below (see CPR 52.11(3)). As will be seen below, the submissions for Mr Rasool encompassed allegations both that the Chairman erred in law and that there was material procedural irregularity leading to injustice.
- The test for bias can be stated un-controversially as follows : would a fair-minded observer, having considered the relevant facts, conclude that there was a real possibility that the tribunal was (consciously or subconsciously) biased : see Porter v Magill  2 AC 357 and Lawal v Northern Spirit Limited  ICR 856 (HL) (at paragraph 21). The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased (see In Re Medicants and Related Classes of Goods (no 2)  1 WLR 700 (at paragraph 85)). The appearance of independence and impartiality is just as important as the question of whether these qualities exist in fact. Justice must not only be done, it must be seen to be done (see for example Lord Hope's statement in Millar v Dickson  1 WLR 1615 at paragraph 63, as endorsed by the Privy Council in Yiacoub and another v The Queen  1 WLR 2996).
- Both parties have referred me to the decision in Castillo Algar v Spain  30 EHRR 827 (at paragraphs 45 and 46). The proposition was there stated that any judge in respect of whom there was a legitimate reason to fear a lack of impartiality must withdraw. In assessing whether there was such a legitimate reason, the standpoint of the accused was important but not decisive. The decisive test was an objective one. The mere fact that a judge had already taken decisions before the trial could not in itself be regarded as justifying anxieties as to his impartiality. The issue of bias was highly fact-sensitive.
- I have also been referred to Datta v General Medical Council (Privy Council Appeal No 34 of 1985). There the chairman had presided over earlier proceedings in which the appellant was found guilty of serious professional misconduct. The complaint was not so much one of bias or that justice was not done, but that it was manifestly not seen to be done. In dismissing the appeal Lord Griffiths said :
"…Those entrusted with judicial or quasi-judicial functions must and can be trusted to try the case on the evidence before them and to put out of their minds knowledge arising out of any earlier appearance before them by the same accused person."
- In Helow v Secretary of State for the Home Department  1 WLR 2416 (HL) (Sc) again the nature of the tribunal was held to be of relevance. There it was held that it could be assumed that a judge would be able to discount material which he or she had read and reach an impartial decision according to the law. At paragraph 23 Lord Rodger of Earlsferry stated :
"In assessing the position, the observer would take into account the fact that Lady Cosgrove was a professional judge. Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience. Like jurors, they swear an oath to decide impartiality. Whilst those factors do not, of course, guarantee impartiality, they are undoubtedly relevant when considering whether there is a real possibility that the decision of a professional judge was biased."
- These comments are consistent with the earlier decision of the Court of Appeal in El Farargy v El Farargy and others  EWCA Civ 1149 (at paragraph 24). There the court drew attention to the endorsement in Locabail (UK) Ltd v Bayfield Properties  QB 451 of the observations of the constitutional court of South Africa in President of the Republic of South Africa v South African Rugby Football Union  4 SA 147 at 177 :
"...The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or pre-dispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial judge is a fundamental pre-requisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial."
- Ultimately, each case will turn on its own facts.
- Whilst the nature and scope of the allegations for Mr Rasool have varied from time to time, it is said in essence that the Chairman was not in a position to put out of his mind the earlier hearing and matters relating to Mr Rasool arising out of the Sarheed proceedings. It is said that there should have been full disclosure of the material before the committee presiding over the interim order review hearing for Ms Sarheed. It is said that the Chairman misdirected himself as to the law, and as to the appropriate standard necessary for recusal. The Chairman ought to have recused himself, and the GPhC's advocate should have conceded the appropriateness of such a course.
- Turning first to the question of bias in principle, the relevant circumstances in the present case can be identified as follows :
a) although Ms Sarheed and Mr Rasool were both working at the Pharmacy, the incident relating to Ms Sarheed in the Sarheed proceedings was a different one to the occasions relied on against Mr Rasool. Each occasion was treated separately;
b) the material from Ms Sarheed amounted to no more than an out of court assertion in different proceedings in respect of which no finding was made;
c) that material was not being relied on in any way in relation to Mr Rasool and was not before the Committee in evidence at the at the hearing against him. It was not referred to at any stage in the Committee's findings (or reasons);
d) indeed the material does not appear to have been of any relevance even to the issues facing Ms Sarheed, as evidenced by the fact that the Chairman said in terms (on 20th December 2013) that it was of no assistance;
e) the Chairman could not remember what was said about Mr Rasool on 20th December 2013. He took no notice of it;
f) at no stage was it suggested that the Chairman had formed any view, let alone an adverse one, in respect of Mr Rasool during the Sarheed proceedings;
g) the Chairman was an experienced QC and chairman who regularly presided over disciplinary hearings involving the GPhC. He could be assumed to be well aware of his duties and obligations to try hearings fairly and by reference only to the evidence and materials before him, and assumed to be capable of discounting anything that had been asserted by Ms Sarheed. Whilst not determinative without more, this last factor is of considerable weight.
- Against this background and the relevant authorities, it cannot in my judgment be said that the Chairman was wrong to conclude that a fair-minded and informed observer would not conclude that there was a real possibility that the Chairman was biased and to rule that he should not recuse himself.
- None of the matters relied on by Mr Rasool causes me to alter this conclusion. The fact that the Chairman made disclosure in the first place does not lead to the conclusion that he was bound to recuse himself (see Taylor v Lawrence  QB 528). He properly made the disclosure so as to give the parties the opportunity to consider their positions (even though he had taken the view in principle, subject to submissions, that he was not in any way disqualified). He went on to hear submissions, considered them and ruled that he could continue as chairman. It was suggested that the Chairman had made his decision prematurely and before argument. The transcript, however, does not bear that out. The final decision on recusal was made at the very end of the recusal application.
- Much was made for Mr Rasool of the fact that the Chairman had at the "forefront of his mind" the references to Mr Rasool in the Sarheed proceedings and, for example, could remember the identity of Ms Sarheed's representative in those proceedings. That that was the case in the context of the Chairman's disclosure to the parties and the recusal application is not surprising. It does not in my judgment mean that a fair-minded and informed observer would conclude that there was a real possibility of bias because he could not put those matters to one side and ignore them for the purpose of the subsequent and separate full hearing against Mr Rasool.
- Equally, for example, the fact that the Chairman was the judge of facts and not merely the law is nothing to the point. Either there was, objectively assessed, the possibility of bias or there was not. Analogies with recusals by magistrates upon learning accidentally of a defendant's previous convictions are not apt either, not least since there is no parallel between the assertions made by Ms Sarheed on which no findings were made and a previous conviction.
- Complaint has been made of the timing of the Chairman's disclosure, but it is not clear to me that disclosure could have been made much earlier and in any event I can identify no material prejudice.
- Nor does the refusal to order full disclosure of the transcript in the Sarheed proceedings advance Mr Rasool's case. Whilst the Chairman referred correctly to the fact that the interim order hearing in the Sarheed proceedings had been held in private in the normal way (see rule 39(2) of the GPhC (Fitness to Practise and Disqualification etc) Rules 2010), I accept the submission for Mr Rasool that that was not necessarily an answer on the issue of bias. What mattered was what had or had not been said to or by the Chairman and his knowledge in relation to Mr Rasool from the Sarheed proceedings. But any failure in this regard cannot be said to amount to a serious procedural irregularity leading to injustice in circumstances where :
a) the Chairman indicated that Mr Rasool should see what Ms Sarheed had said;
b) Mr Rasool's representatives were provided with the relevant part of the transcript for 20th December 2013 and the final determination;
c) Mr Rasool's statement in relation to Ms Sarheed formed part of the unused material disclosed by the GPhC to Mr Rasool;
d) the GPhC's advocate checked the full transcript to identify if there was any material relevant to Mr Rasool that he ought to see. It is not suggested that that exercise was not in any way carried out properly. No further material was identified.
- In oral submission for Mr Rasool it was suggested that there was a different type of failure to disclose on the part of the Chairman, namely a failure to disclose how the Chairman came to make the disclosure that he did. Was it the product of his independent recollection or had he been reminded (through the administrative process) of his involvement in the Sarheed proceedings? The short answer is that this information was immaterial to the question of bias. It was the content of the disclosure that mattered.
- It was also suggested (for the first time orally) that there was serious procedural irregularity in that the Chairman ought not to have ruled on the recusal application himself, but rather should have referred the matter to another chairman. No authority was cited in support of this proposition. Whilst I accept that there may be cases when referral of the issue to another chairman might be appropriate, for example, if there was a personal attack on the chairman's conduct, this was not such a case. I can see no procedural irregularity in this regard.
- As to error of law, no material error of law has been identified. The Chairman considered the circumstances, applied an objective test and considered the question of bias. Whilst the ruling is short, and no specific authority is cited, the relelvant test is well-known. Additionally it is clear from the wording used that the Chairman had the correct test in mind. What Mr Rasool really complains of is the outcome of the application of the correct test to the facts of his case. As set out above, the outcome was not wrong in law.
- I therefore reject the appeal on issue 1.
Issue 3 : sanction
- For Mr Rasool it is submitted forcefully that erasure was not the appropriate method of disposal :
a) this was not a case of dishonesty;
b) no third party was affected;
c) Mr Rasool was remorseful and had insight;
d) Mr Rasool had co-operated fully with the police.
- It is said that suspension with conditions would have the appropriate sanction, in particular suspension with a further review hearing. The Committee acted disproportionately, gave undue weight to BBC publicity, and failed to give due weight to the factors identified above. In oral submission it was submitted that the Committee also failed in particular to give due weight to the fact that that Mr Rasool had already been suspended for some two years, which was something to be borne in mind (see Ujam v General Medical Council  EWHC 683 (Admin)).
- This court will only interfere with a determination on sanction if it is wrong (or there has been injustice through serious procedural or other irregularity). Guidance on the approach to be taken can be found in the context of other disciplinary jurisdictions, for example, in Raschid v General Medical Council  1 WLR 1460. There it was held that a principal purpose of the Fitness to Practise Panel was the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, and it was necessary to accord special respect to its judgment. While the High Court should correct material errors of fact and law, it should exercise a "distinctly and firmly secondary judgment" (see paragraph 20). Equally, in Salsbury v Law Society  1 WLR 1286 it was held that, absent any error of law, an appellate court must pay considerable respect to the specialist tribunal's sentencing decisions. If, nevertheless, the court was satisfied that the tribunal's decision was clearly inappropriate, then it would interfere.
- There is here, in my judgment, no identifiable error of law. There is nothing to support the submission that the Committee placed any, let alone undue weight, on BBC publicity, or that it ignored relevant factors, including those identified by Mr Rasool. It had before it all of Mr Rasool's circumstances (including previous suspension) having heard the evidence and submissions and immediately before made its substantive findings and ruled on impairment.
- Thus the Committee was fully aware that there was no allegation of dishonesty. There was, however, a blatant and deliberate flouting of the law relating to the supply of prescription only medicines. That was a matter going to Mr Rasool's trustworthiness.
- The Committee considered the aggravating and mitigating features of Mr Rasool's conduct, including his personal circumstances and testimonials. Indeed, Mr Rasool was recalled to give evidence as to his personal circumstances and remorse.
- The Committee found Mr Rasool's conduct to have been shocking. It was entitled to reject the submission of genuine insight, given his attempts in the course of the proceedings to justify his conduct. His answers in cross-examination were rightly treated as revealing fundamental misunderstandings of the function and role of a pharmacist. Whilst it accepted that Mr Rasool had co-operated with the police, in that he had answered questions and not responded "no comment", his co-operation did not extend to any admissions of misconduct.
- In short, I accept the submission for the GPhC that the critical finding of the Committee on sanction was that Mr Rasool's conduct was fundamentally incompatible with registration. The Committee had before it the relevant Indicative Sanctions Guidance. Where a finding of fundamental incompatibility is made, it is clear that removal from the register may be appropriate (and suspension inappropriate) (see paragraphs 13 and 14 of the Guidance).
- In that context, the Committee identified and considered all possible sanctions. It was entitled to reject the option of suspension in the light of the Indicative Sanctions Guidance and for the reasons that it gave, namely that suspension would not serve sufficiently the threefold purpose of sanction : the protection of the public, the maintenance of public confidence in the profession; and the maintenance of proper standards of behaviour within the profession. The Committee was entitled to take the view that a "stronger and more emphatic message than would arise from suspension" was required.
- I can see no basis for interference with the sanction of erasure imposed by this specialist tribunal which had the benefit of seeing and hearing the evidence after a full five day hearing and the judgment of which, absent any error of law, should be respected.
- For all these reasons, the appeal is dismissed. I invite the parties to agree the terms of an order, including as to costs and any other consequential matters.
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